Custom, Excise & Service Tax Tribunal
Cce Daman vs M/S Sahakari Khand Udyog Mandal Ltd on 31 December, 2014
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/46-47/2009-SM [Arising out of: OIA No.KKS/381 to 382/Daman/2008, dt.30.09.2008, passed by: Commissioner of Central Excise & Customs (Appeals), Vapi] CCE Daman Appellant Vs M/s Sahakari Khand Udyog Mandal Ltd. Respondent
Represented by:
For Assessee: None.
For Revenue: Shri S.K. Shukla, A.R. For approval and signature:
Mr. P.K. Das, Honble Member (Judicial)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
MR. P.K. DAS, HONBLE MEMBER (JUDICIAL) Date of Hearing/Decision:31.12.2014 Order No.A/ 12347-12348/2014, dt.31.12.2014 Per: P.K. Das
1. None appears on behalf of the respondent. They have filed written submissions dt.23.12.2014 to decide the matter in their absence on the basis of records and the written submissions.
2. Heard the learned Authorised Representative for the Revenue and perused the records.
3. After hearing the learned Authorised Representative and on perusal of the records, I find that the respondent are engaged in the manufacture of Sugar, Molasses classifiable under Chapter 17 of the Central Excise Tariff Act, 1985. The issue involved in this case is as to whether while paying Education Cess, Sugar Cess is required to be taken into consideration or not. The Commissioner (Appeals) set aside the Adjudication order and allowed the appeal filed by the respondent following the decision of the Tribunal in the respondents own case M/s Sahakari Khand Udyog Mandli Ltd Vs CCE Daman 2000 (232) ELT 61 (Tri-Ahmd).
4. It is seen that the Revenue filed an appeal against the order of the Tribunal before Hon'ble Gujarat High Court, which was dismissed by Hon'ble High Court as reported in 2011 (263) ELT 34 (Guj.) (CCE Vs M/s Sahakari Khand Udyog Mandli Ltd). The relevant portion of the said decision is reproduced below:-
9.?Under the Sugar Development Fund Act, 1982, `fund means sugar development fund formed under Section 3 of the said Act, Under sub-section (2) of Section 3 of the Sugar Development Fund Act, 1982, it is provided that an amount equivalent to the cess collected under the Cess Act, reduced by the cost of collection, together with any moneys received by the Central Government for the purposes of the Sugar Development Fund Act, shall, after due appropriation made by parliament by law be credited to the sugar development fund. To put it differently, amount which was collected by way of sugar cess under the Cess Act is in the first instance, credited to the Consolidated Fund of India and thereafter, by due appropriation made by the parliament by law credited to the sugar development fund.
10.?For the present, it is not necessary to consider other provisions of the Sugar Development Fund Act, 1982 relating to application of the sugar development fund etc. Suffice it to state that the Cess Act and the Sugar Development Fund Act both have been brought on the statute book simultaneously on the same day and operate as a consolidated scheme and the provisions of both the Acts have to be read together. On such conjoint reading, it is apparent that a plain reading by itself would indicate that the sugar cess levied and collected cannot be equated with duty of central excise and therefore, cannot be treated to be part and parcel of the amount on which education cess has to be calculated. In the circumstances, there is no infirmity in the impugned order of Tribunal to warrant interference.
11.?Accordingly, in absence of any substantial question of law, the appeal is dismissed.
5. Subsequently, CBEC Circular No.978/2/2014-CX, dt.07.01.2014 in respect of levy of Education Cess and Secondary & Higher Secondary and all other Cesses clarified that a Cess levied under an Act which is not administered by Ministry of Finance (Department of Revenue) but only collected by Department of Revenue under the provisions of that Act cannot be treated as duty, which is both levied and collected by the Department of Revenue.
6. In view of the above discussion, I do not find any infirmity in the order of the Commissioner (Appeals). Accordingly, both the appeals filed by the Revenue are rejected.
(Dictated & Pronounced in Court) (P.K. Das) Member (Judicial) cbb 4